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Tuesday, June 28, 2011

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Applicant for employment as a corrections officer rejected because of misdemeanor convictions
Matter of Little v County of Westchester, 36 AD3d 616

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." 

Except in cases of fraud, there is a three-year statute of limitation on disqualifying an employee pursuant to Section 50.4.

Misinformation may be given by a candidate when completing an application for employment. The Angelopoulos case, [Angelopoulos v New York City Civil Service Commission, Appellate Division, First Department], however, did not involve misinformation but rather the omission of certain information from the application form. According to the decision by the Appellate Division, First Department, Angelopoulos was disqualified from his position of police officer on the grounds that he "fraudulently omitted his military service on his application for employment...."

Although Angelopoulos stated that he had no prior military service and that he had never used an alias, it was determined that he had enlisted in the United States Army under the name of Angelo.

This misrepresentation was discovered during a post-employment investigation that revealed that a felony warrant had been issued against Angelopoulos for desertion from the Army and that he was given a "General Discharge in absentia" from the Army. On the basis of this falsification, Angelopoulos was disqualified from the police force for fraud. His dismissal upheld by the New York City Civil Service Commission.

Under Section 50.4 of the Civil Service Law, an individual may be disqualified only for "fraud of a substantial nature" in his application. Angelopoulos argued that he did not commit any fraud as he had agreed to a general discharge in connection with the settlement of a disciplinary matter while in the Army and that "he understood that his period of service was a ‘nullity’, which he need never reveal."

The Appellate Division said that Angelopoulos neither disclosed the fact of his service nor his use of an alias in connection with his military service. This, it ruled, "could not be said that these misrepresentations were immaterial."

The Court also noted that Angelopoulos falsely indicated that he was employed in a civilian job while he was actually in the military, which it said "goes beyond mere concealment." It then sustained his disqualification by the Commission.

Another case, Carchietta v Department of Personnel, 568 NY2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently, the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

Section 106 of the Civil Service Law makes it a misdemeanor for any individual to impersonate a candidate in a civil service examination as well as a candidate allowing another individual to impersonate him or her in the examination.

Although litigation involving disqualification of a candidate pursuant to §50.4 of the Civil Service Law is relatively common, cases dealing with alleged violations of §106 are rare. One of the few cases reported concerning violations of §106 is People v Knox, l78 AD 344, a case decided in 1903, in which the Appellate Division ruled that a civil service commission may disqualify an applicant where it finds that fraud or deception has been practiced.

Daubman v Nassau County Civil Service Commission, 601 NY2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...." 

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability." 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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